No man may disparage the reputation of another. Every one has a right to have his good name maintained, unimpaired. Words which produce any perceptible injury to the reputation of another are called defamatory: and if they are false they are actionable. False and malicious defamatory words, if in printing, writing, pictures or signs, and published, constitute a libel; if spoken, a slander. A caricature may be a libel; so may a chalk-mark on a wall, a statue, hieroglyphics, a rebus, an anagram or an allegory, or even ironical praise.

Defamatory matter, whether published in the form of libel or slander, is actionable when it imputes a criminal offence (or a contagious or infectious disorder) or affects the plaintiff injuriously in his lawful profession, trade or business, or in the discharge of a public office, or generally when it is false and malicious, and its publication causes damage to the plaintiff either in law or in fact. Defamatory matter, the publication of which tends to degrade or disparage the plaintiff, or which renders him ridiculous, or charges him with want of honesty, humanity or veracity, or is intended to impair his enjoyment of society, fortune or comfort, is actionable as libel, but not as slander, unless special damage be proved (340). "130"

The person defamed by a libel has not only a civil remedy to recover damages but he may also, in some cases, proceed criminally by way of information or indictment and have the defamer punished as an offender against the state. If he proceeds by information he must in general waive his right to bring a civil action; but he may sue for damages after the offender has been convicted upon an indictment. An action for libel must be brought within six years; and an action for slander within two years, unless the words spoken are actionable only by reason of special damage, in which case the action may be brought at any time within six years.

Whenever a special kind of knowledge is essential to the proper conduct of a particular profession, denying that a man possesses such special knowledge will be actionable if he belongs to that particular profession, but not otherwise. Thus to say of a physician, “Thou art a drunken fool and an ass. Thou wert never a scholar, nor even able to speak like a scholar,” is actionable, because no man can be a good physician unless he be a scholar (341). Although one may with impunity say of a Justice of the Peace, “He is a fool, an ass and a beetle headed justice” (342). So to say, of a midwife, “Many have perished for her want of skill;” or, “She is an ignorant woman, and of small practice and very unfortunate in her way; there are few she goes to but lie desperately ill, or die under her hands;” is actionable (343). Or of an apothecary, “He is not an apothecary; he has not passed any examination. Several have died that he had attended, and there have been inquests held upon them” (344). Although one may safely say of a Justice of the Peace, “He is a blood sucker, and sucketh blood.” "131"

It is actionable to say of a person in his professional character, “He is no doctor; he bought his diploma for $50” (345). Any words imputing to a practising medical man, misconduct or incapacity in the discharge of his professional duties, are actionable per se. Thus, it is actionable, without proof of special damage, to accuse one of having caused the death of any patient through his ignorance or culpable negligence, as to say of a physician, “He killed my child by giving it too much calomel,” or, “He hath killed J. S. with physic, which physic was a pill;” or, “He was the death of J. P.; he has killed his patient with physic; it is a world of blood he has to answer for in this town through his ignorance; he did kill a woman and two children at Southampton; he did kill J. P. at Petersfield;” or, as an American did, “Dr. S. killed my children; he gave them teaspoonful doses of calomel, and it killed them. They did not live long after they took it. They died right off the same day” (346).

So it is to say of an apothecary, “He poisoned my uncle; I will have him digged up again, and hang him,” or, “He killed my child; it was the saline injection that did it;” or, “I was told he had given my child too much mercury, and poisoned it; otherwise, it would have got well” (347).

So it is actionable to say of a surgeon and accoucheur, “He is a bad character; none of the medical men here will meet him.” As such words impart the want of a necessary qualification for a surgeon in the ordinary discharge of his professional duties; or, “Dr. Tweedie has honorably and faithfully discharged his duties to his "132" medical brethren in refusing to act or consult with Ramadge (a physician), and we hope every one else will do the same” (348). Or to call a practising medical man “a quack,” “a quacksalver,” “an empiric,” or “a mountebank,” or to say of him, “Thou gavest physic which thou knewest to be contrary to the disease,” or “Thou art no good subject, for thou poisonedst A. F.’s wound, to get more money of him.” Under the New York Statutes, a homoeopathic physician may maintain an action for being called a quack (349). And it seems that an action will lie, without averment of special damages, for slander imputing to a physician, that he has taken advantage of his character as a physician to abuse the confidence reposed in him, and commit acts of criminal conversation with a patient (350).

In the case of libel, any words will be presumed defamatory which expose the plaintiff to hatred, contempt, ridicule or obloquy, which tend to injure him in his professional trade, or cause him to be shunned or avoided by his neighbours. Thus, to advertise falsely that certain quack medicines, “consumption pills,” were prepared by a physician of eminence, is a libel upon such physician (351).

Whenever a medical man brings forward some new method of treatment and advertises it largely as the best, or only cure for some particular disease, or for all diseases at once, he may be said to invite public attention, and a newspaper writer is justified in warning the public against such advertisers, and in exposing the absurdity of their professions, provided he does so fairly and with reasonable judgment (352). "133" A medical man, who had obtained a diploma and the degree of M.D., from an American College, advertised in England most extensively a new and infallible cure for consumption. The Pall Mall Gazette published a leading article on these advertisements, in which they called the advertiser a quack and an impostor, and compared him to scoundrels “who pass bad coin.” This was considered as overstepping the limits of fair criticism, and a verdict was given for the plaintiff, with damages, one farthing (353). So where the editor of the Lancet attacked the editor of a rival paper, The London Medical and Physical Journal, by rancorous aspersions on his private character, not fairly called for by what the plaintiff had done as an editor, the plaintiff recovered a verdict of £5 (354).

On the other hand, it is not actionable to say of a surgeon, “He did poison the wound of his patient,” without some averment that this was improper treatment, for it might be proper for the cure of it. Nor to say of an apothecary, “He made up the medicine for my child wrong, through jealousy, because I would not allow him to use his own judgment” (355). Nor to charge a physician or surgeon with “malpractice,” if it appear that the word was not used or understood in a technical sense; and to charge a physician or surgeon with mere want of skill, or with ignorance or neglect, is not actionable per se, though untrue, unless the charge be of gross want of skill, or the like, so as to imply general unfitness (356).

Nor is it actionable to call a person who practises medicine or surgery, without legal qualification, a “quack or an "134" impostor,” for the law only protects lawful employment (357). Even though a medical man be duly registered in Great Britain, still, if he is practising in a colony which requires registration without complying with the colonial law, he may safely be called “a quack,” “a charlatan,” “a scoundrel not to be entrusted with the lives of people” (358).

Words imputing immoral conduct, profligacy or adultery, even when spoken of one holding an office or carrying on a profession or business, are not actionable unless they “touch him” in that office, profession or business. Thus, if adultery is alleged of a clergyman, it will be actionable, because if the charge were true, it would be a ground for degradation or deprivation, as it would prove him unfit to hold his benefice, or to continue the active duties of his profession. But if the same words are spoken of a physician, they will not be actionable without proof of special damage, as they do not necessarily affect the plaintiff in relation to his trade or profession (359).

Nor unless the words are spoken in connection with the professional duties of the plaintiff will an action lie for the words, “He is so steady drunk, he cannot get business any more;” or “He is a twopenny bleeder” (360).

It is no libel to write of a physician that he is in the habit of meeting homoeopathists in consultation (361).

Where the plaintiff considers that the words spoken touch him in his profession or trade, he must always aver in the pleadings that he was carrying on the profession of a physician or surgeon, or the trade of a druggist, at the "135" time the words were spoken. Sometimes this is admitted by the slander itself, and if so, evidence is of course unnecessary in proof of this averment. But in other cases, unless it is admitted on the pleadings, evidence must be given at the trial of the special character in which the plaintiff sues. As a rule, it is sufficient for the plaintiff to prove that he was engaged in the profession or trade, without proving any appointment thereto, or producing a diploma or other formal qualification. For the maxim omnia presumuntur rite esse acta applies. But if the very slander complained of imputes to the medical practitioner that he is a quack or an impostor, not legally qualified for practice; or if the plaintiff aver that he is a physician and has duly taken his degree, then the plaintiff at the trial must be prepared to prove his qualification strictly by producing his diploma or certificate. In some cases the mere production of the diploma will not be sufficient proof of the plaintiff’s having the degree, but it may be necessary to prove that the seal affixed is the seal of a university having power to grant degrees; or in the case of the production of a copy of the diploma, that it has been compared with the original (362).

Whether or no the words were spoken of the plaintiff in the way of his business is a question for the jury to determine at the trial. There should always be an averment in the statement of claim, that the words were so spoken, and it should also be shewn in what manner the words were connected by the speaker with the profession (363).

Medical practitioners are of course equally liable with other men to an action for defamation, in respect of any "136" false and malicious communication, whether oral or written, made by them to the damage of another, in law or in fact; circumstances, however, frequently arise where, from the nature of their employment, it becomes their duty or interest to make some communication prejudicial to the character or conduct of another, and in such cases, where the occasion on which the communication was made rebuts the presumption of malice, (which the law infers from such a statement,) such communication is said to be privileged, and therefore, in order to sustain an action for defamation, the plaintiff must prove that the defendant was actuated by express or actual malice—that is, malice independent of the occasion on which the communication was made. The legal canon is, that a communication made bona fide, upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter, which (without this privilege) would be slanderous and actionable. This applies, moreover, though the duty be not a legal one, but only a moral or social duty of imperfect obligation, and also where the communication is made to a person not in fact having such interest or duty, but who might reasonably be, and is supposed by the party making the communication to have such interest or duty (364). Even where the evidence of duty is not present to the mind, but the speaker is impelled by a sense of propriety, on which he does not pause to reflect, and which he refers to no special motive, nevertheless, if his conduct in speaking the words be within the occasion of interest or of duty which is capable of protecting, the communication will be considered privileged (365).

Words spoken by the medical officer of a college concerning "137" the meat furnished to the institution; and words used by the medical attendant of a poor-law union about the wine supplied to the inmates, are privileged, in the absence of proof of actual malice (366). A statement made by a physician that an unmarried woman is pregnant is not a privileged communication, unless made in good faith to one who is reasonably entitled to receive the information (367).